by Jery Payne

Last week we discussed what a supermotion is and what a GAVEL motion is. If you missed it, you might want to check it out. It’s not necessary to read that article, but it may be helpful.

Whether by supermotion or not, GAVEL allows a bill to skip ahead in the normal process. But depending on how this is done, it can mean the process fails to meet a constitutional requirement.

Ironically, the constitutional requirement also comes from the GAVEL amendments to the Colorado Constitution, Section 20 of article V: “Every measure referred to a committee of reference of either house shall be considered by the committee upon its merits, and no rule of either house shall deny the opportunity for consideration and vote by a committee of reference….” This language was litigated in the case of Grossman v. Dean.

The court of appeals held that this provision creates “a legally protected right for each legislator to have a committee of reference consider and vote on a bill on its merits.” So each bill must be both considered and voted on.

Now, I’ll bet some of you are thinking: “What does ‘considered’ mean?”

Does it require a hearing? Probably, but that only begs the question of what has to happen in the hearing.

Does it mean a vote? Yes, but in Grossman v. Dean, the court held that a mere vote isn’t enough. Section 20 of article V specifically mentions both (1) consideration and (2) a vote. So the court held that merely voting isn’t enough.

Does it mean discussion, debate, or testimony? The committee probably has to do at least one of them, but it probably doesn’t have to do all three. Each would fulfill the consideration requirement, but any one is not necessary:

[T]he intent of GAVEL in requiring “consideration” was that legislators be precluded from completely prohibiting interactive committee consideration of the merits of a bill, which interaction normally includes some level of discussion, debate, or testimony. … The amendment … leaves the General Assembly to determine, on a case-by-case basis, the level of discussion, debate, or testimony that is required.

So GAVEL requires at least a bit of discussion, testimony, or debate. But the details are left to the General Assembly. House Rule 25 (j) (1) (E.2) delegates this discretion to the committee chair. So unless a statute or legislative rule says otherwise, the committee chair makes these decisions.